Link to Oral assessments, and assessed presentations for examples of what can be done to help people who stammer, and a less technical summary of the Equality Act rules.
WARNING: This page has not yet been updated for the Equality and Human Rights Commission’s Technical Guidance on Further and Higher Education, issued in November 2012.
The EHRC has also now issued a more straightforward guide for students on their rights: What equality law means for you as a student in further or higher education (link to EHRC).
The ‘2007 Code of Practice’ on this page means the Code of Practice (revised) for providers of post-16 education and related services (pdf, dera.ioe.ac.uk), dated 2007. The 2007 Code may still be in force, but is out of date in that it does not include the Equality Act 2010.
In general the normal types of claim apply – they are listed on my Types of discrimination page. They apply to students of the university or other institution. There are also provisions which, as regards qualifications, extend protection to disabled people who are not students at the institution.
However the rules are altered in relation to competence standards. In summary:
- the process of assessing a competence standard, but not the standard itself, is subject to the reasonable adjustment duty, and
- unless unlawful as direct discrimination, the competence standard itself can be subject to the ‘objective justification’ test, namely whether it is a proportionate means of achieving a legitimate aim.
Examination and assessment examples:
From the 2007 Code of Practice: Post-16 Education (pdf, dera.ioe.ac.uk), but should still apply under Equality Act 2010:
“A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period.” Para 5.74
“The entrance requirements for a GCSE French course state that applicants ‘must be able to speak clearly’. This requirement could unjustifiably exclude some people whose impairments result in a significant effect on their speech.” Para 8.7
“An adult education college states that it requires a level of English language fluency for entrance onto its courses and specifies a particular test of language fluency that it will accept. An applicant with a speech impairment found that this particular test did not allow for additional time to be given, and as a result she scored much lower than she should have done on the test. The college would be unable to justify rejecting her for not having the required test result if she could show through an alternative test that she had the relevant level of fluency required.” Para 8.12
“A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is likely to be a reasonable adjustment.” Para 8.31
“A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is ‘speaking clearly in a customer services environment’. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful.” Para 9.19.
Slow writer not being allowed twice as long for a shorthand test, as speed is likely to be a competence standard for shorthand. Para 9.24
Possible additional exam time for student with dyslexia. Para 9.31
Viva for deaf student – sign language interpreter and additional time as reasonable adjustments. Para 9.34
A competence standard is a standard – academic, medical, or otherwise – for the purpose of determining whether a person has a particular level of competence or ability (EqA Sch 13 para 4(2)). This is discussed from para 5.71 in the 2007 Code, and from para 7.33 in the 2012 Technical guidance.
The 2007 Code says at para 9.19 that a competence standard which results in direct discrimination is not a genuine competence standard and education providers who apply such standards will be acting unlawfully. It gives the example of a requirement to be able to speak clearly in order to pass a travel and tourism course, as quoted in the box.
A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is ‘speaking clearly in a customer services environment’. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful.
2007 Code of Practice, para 9.19. This Code is dealing with (similar) previous legislation. The Code seems to be still in force as a statutory code.
In Burke v College of Law (2012) – on which more below – the Court of Appeal did not have to reach a decision on whether a time requirement was a competence standard.
Reasonable adjustments and competence standards
There is a duty to make reasonable adjustments to the process by which competence is assessed, but not to the application of a competence standard (para 5.75-5.79 of 2007 Code, para 7.38-7.43 2010 draft Code). It is EqA Sch 13 para 4(2) which says that the reasonable adjustment duty does not apply to competence standards.
Sometimes the process of assessing whether a competence standard has been achieved and the standard itself are inextricably linked. For instance, ability to speak French cannot be tested in writing.
By way of another example, according to the 2007 Code (but see the Burke case below) it seems that a requirement for a test to be completed in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period (example in para 5.74 of 2007 Code – see box). Accordingly:
- if ability to do something within a limited time period is not the competence being tested, the reasonable adjustment duty could apply to require more time to be allowed for the test;
- if ability to do something within a limited time period is the competence being tested:
- the competence standard must be ‘a proportionate means of achieving a legitimate aim’ – if it disadvantages people who stammer (‘objective justification’ test below);
- the reasonable adjustment will not apply to the time allowed. Or could it? Burke v College of Law (2012) suggests that one should consider whether the competence standard is, say, the ability to work under a time constraint, so that the particular time limit adopted for the exam is perhaps not a competence standard and may be subject to the reasonable adjustment duty. (The Burke case related to the rules on professional exams, but the same test should apply on what is a ‘competence standard’.)
Para 8.31 of the 2007 Code includes “allowing a disabled person extra time to complete the test” as an example of an adjustment which may be reasonable. There is also an example in the same paragraph about extra time being allowed for an oral exercise given to applicants for a higher level language course (in box).
For more Code of Practice examples of where adjustments can and cannot be required as regards speech, see also the similar rules on trade/professional qualification bodies and general qualification bodies.
There are some examples of adjustments, by De Montfort University – Working with students who stammer (pdf on archive of De Montfort University website.
In Burke v College of Law (2012), mentioned above, sufficient reasonable adjustments (including extra time) were held to have been given to a student with multiple sclerosis taking exams to become a solicitor. (Technically this case was decided under the rules for professional exams rather than post-16 education.)
The reasonable adjustment duty is not the only type of discrimination claim that can apply to how standards are assessed. In particular ‘discrimination arising from disability’ and indirect discrimination can also be relevant. For those, the main potential defence will be if the examining body shows that what it did meets the ‘objective justification’ test, ie that it was a legitimate means of achieving a legitimate aim.
Justification of competence standards
With the exception of the reasonable adjustment duty, the various types of discrimination claim can still apply to a competence standard, in particular ‘indirect discrimination’ and (subject to the knowledge requirement) ‘discrimination arising from disability’. Both these are subject to the ‘objective justification’ defence, namely whether the competence standard is a proportionate means of achieveing a legitimate aim. That is therefore the main test for whether a competence standard disadvantaging disabled people is lawful. Assuming there is no direct discrimination, if the institution setting the exam can show the objective justification defence applies, the competence standard is lawful – even though it disadvantages disabled people.
There is much case law and guidance on what is needed to meet the objective justification defence. See my ‘objective justification’ defence page. There is more detail – specifically in the context of further and higher education – in para 5.25-5.40 and 6.11-6.12 of the 2010 draft Code.
These rules on competence standards also apply to criteria for admission to a course. If the institution says people must meet a particular competence standard to enter a course and this disadvantages disabled people, the institution must be able to show that the objective justificationd defence applies, in other words that imposing the standard is a proportionate means of achieving a legitimate aim. (But the ‘reasonableness’ test of the reasonable adjustment duty does not apply.)
Draft 2010 Code, para 7.34
The admission criteria for a course in choreography include a requirement to demonstrate ‘a high level of physical fitness’. The course itself, however, is predominately theory-based and does not involve any strenuous physical activity. This is unlikely to be a competence standard.
See also the example on English language fluency at para 8.12 of the 2007 Code – in box
Generally, including unnecessary or marginal requirements for entry to a course can lead to discrimination. Para 8.7 of 2007 Code gives the example of a requirement to be able to speak clearly (see box).
In some cases an external examining/awarding body or professional body is involved. The examining body is itself likely to be bound by the Equality Act. Trade/professional qualification bodies have duties under Part 5 Equality Act 2010 (employment). Some other examination bodies are subject to another set of rules applying GCSEs, A-levels etc,
What about liability of the university etc if it is not the body setting the exams? The education provider is only liable for itself and its agents, not for an independent examining body. Even so, an education provider is still likely to have some obligations where an external body is involved, for example as regards administration of the exam. Some examples from old Codes of Practice are quoted below, but they are unreliable. In particular students should not assume that the university etc is responsible for arranging adjustments with the examining body – students may need to take the initiative on this themselves.
From the 2007 Code of Practice (revised) for providers of post-16 education and related services (pdf, dera.ioe.ac.uk) which applied to the Disability Discrimination Act 1995 (DDA):
9. 29 Where the qualification is being conferred by another body, such as a professional body awarding a professional or trade qualification, or a general qualifications body awarding a general qualification, it is advisable for education providers to set up systems for working with such qualifications bo dies.The education provider is likely to have a crucial role in ensuring that such qualifications bodies obtain the information that they need to make adjustments for disabled students who are taking examinations or other assessments.
A partially sighted man on a course has always had course information provided to him in large print by the college as a reasonable adjustment…., and he has used a desklight when taking internal tests as par t of his course. With the man’s consent, the college informs the qualifications body that he needs an examination paper in largeprint for examinations set by this body. The college provides him with a desklight for such examinations.
From the pre-2006 Code of Practice on post-16 education:
3.8A: A student at a further education college is studying for GCSEs. Modifications to the delivery of the examination have to be agreed by the examination board. The college has responsibility for finding out what modifications the student may need, for requesting these of the examination board and for making any adjustment needed to the administration of the examination in the college. The college is not responsible for deciding whether modificiations are acceptable nor for any changes to the examinations themselves, which are not covered by Part 4 of the [DDA 1995].